General terms and conditions

Disclaimer of Warranties / Limitation of Liability

PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER SHALL HAVE NO LIABILITY TO PURCHASER FOR ANY CLAIM, LOSS OR DAMAGE CAUSED OR ALLEGED TO HAVE BEEN CAUSED DIRECTLY, INDIRECTLY, INCIDENTALLY OR CONSEQUENTIALLY BY THE EQUIPMENT, OR BY ANY INADEQUACY, DEFICIENCY, OR DEFECT THEREIN, OR BY ANY INCIDENT WHATSOEVER IN CONNECTION THEREWITH, WHETHER ARISING IN STRICT LIABILITY OR OTHERWISE.

UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY LOST PROFITS OR FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

WITHOUT LIMITING THE FOREGOING, SELLER DISCLAIMS AND PURCHASER WAIVES ANY WARRANTY REGARDING THE OPERATION, CONDITION, REFRIGERANT TYPE, REGULATORY COMPLIANCE, OR PERFORMANCE OF REFRIGERATED CONTAINERS.

IN THE EVENT ANY EQUIPMENT SURVEYS ARE PERFORMED AT THE REQUEST OF PURCHASER, SUCH SURVEYS SHALL BE CONDUCTED BY AN INDEPENDENT THIRD PARTY ON BEHALF OF PURCHASER. SELLER DOES NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF ANY SUCH SURVEY.

NOTHING HEREIN SHALL LIMIT OR EXCLUDE LIABILITY TO THE EXTENT SUCH LIMITATION OR EXCLUSION IS NOT PERMITTED UNDER APPLICABLE LAW, INCLUDING LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

Customer Delay / Failure to Accept Delivery

Once the Equipment is completed, available, or otherwise ready for delivery, Seller may notify Purchaser that the Equipment is ready for delivery. Purchaser shall accept delivery or provide all information, approvals, access, scheduling, and other cooperation required to complete delivery within seven (7) business days after such notice.

If Purchaser fails, refuses, delays, or is unable to accept delivery within seven (7) business days after notice that the Equipment is ready, Seller may invoice Purchaser for the Equipment and any applicable charges as though delivery had been accepted.

In addition, Seller may transfer, allocate, or designate the Equipment in Seller’s depot, yard, or inventory system to Purchaser’s account. Beginning on the eighth (8th) business day after notice that the Equipment is ready, Purchaser shall be responsible for storage charges of $5.00 per TEU per day until the Equipment is delivered, picked up, released, or otherwise removed from Seller’s depot or yard.

For purposes of this section, TEU means twenty-foot equivalent unit. Unless otherwise stated on the applicable Sales Order, a 10-foot container equals 0.5 TEU, a 20-foot container equals 1 TEU, a 40-foot container equals 2 TEU, and a 45-foot container equals 2.25 TEU.

Purchaser remains responsible for all amounts due, including the purchase price, delivery charges, storage charges, handling charges, taxes, and any other applicable fees. Purchaser’s delay or failure to accept delivery shall not excuse payment, cancel the order, extend any payment deadline, or modify Seller’s refund, cancellation, warranty, or other applicable terms.

Seller shall not be liable for any delay, loss, damage, cost, or expense arising from Purchaser’s failure or inability to timely accept delivery, except to the extent caused by Seller’s gross negligence or willful misconduct.

Taxes, Customs, and Compliance with Laws

Prior to sale to Purchaser, the Equipment has been used solely for international transportation and is located at the pickup location under temporary admission pursuant to the Convention on Temporary Admission (Istanbul Convention) and related laws.

The Equipment has not been qualified in any jurisdiction for any other use. Purchaser assumes exclusive responsibility for, and agrees to pay, all taxes, filings, and regulatory obligations arising from or related to the Equipment, including without limitation domestication or conversion for domestic use.

Purchaser shall indemnify and hold Seller harmless from all sales or use taxes, transfer taxes, title and registration fees, VAT, personal property taxes, duties, tolls, levies, fines, penalties, or other governmental charges arising from the sale, use, or disposition of the Equipment.

Indemnification

Purchaser shall defend, indemnify, and hold harmless Seller, its agents, employees, and affiliates from and against any and all claims, losses, damages, liabilities, demands, actions, costs, expenses, and fees (including reasonable attorneys’ fees) arising out of or related to the sale, use, operation, or disposition of the Equipment.

Remedies / Waiver

The remedies available to Seller are cumulative and in addition to any remedies available at law or in equity. Failure by Seller to enforce any provision shall not constitute a waiver of any provision or any subsequent breach.

Assignment / Entire Agreement

Purchaser may not assign this Agreement without Seller’s prior written consent.

This Agreement, together with the applicable invoice, constitutes the entire agreement between the parties and supersedes all prior agreements or understandings. Any modification must be in writing and signed by both parties.

Governing Law and Dispute Resolution

This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA, excluding its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

All disputes arising out of or relating to this Agreement shall be resolved exclusively in accordance with the dispute resolution procedures set forth below.

Alternative Dispute Resolution (ADR)

Step One – Negotiation
The parties shall attempt in good faith to resolve any dispute through negotiation. If the dispute is not resolved within sixty (60) days, either party may proceed to mediation.

Step Two – Mediation
The parties agree to attempt to resolve the dispute through mediation administered by the American Arbitration Association (AAA). Seller shall pay up to three (3) hours of mediation costs.

Step Three – Binding Arbitration
Any unresolved dispute shall be finally resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules.

• Location: San Francisco County, California, USA
• Arbitrator: Single arbitrator
• Language: English
• Judgment on the award may be entered in any court of competent jurisdiction

Each party consents to jurisdiction and waives any objection to venue or forum.

Service of process may be made by registered mail or courier and shall be effective to the extent permitted by applicable law.

The prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.